Driving drunk to escape attack will cost driver license

  • Article by: ABBY SIMONS , Star Tribune
  • Updated: July 17, 2012 - 9:26 PM

Judge: No "necessity defense" in implied-consent cases.

Jennifer Axelberg cowered in the front seat of her locked vehicle as her drunken husband jumped onto the hood and punched the windshield so hard the glass spidered across the driver's side.

Jennifer, also drunk, then started the car and drove toward the safety of the tavern near Mora, Minn., where they'd been drinking earlier. He was arrested on suspicion of domestic assault and disorderly conduct -- and she was arrested on suspicion of drunken driving.

Now a Kanabec County judge has ruled that escaping domestic violence is no defense against having your license revoked for drunken driving, denying the 38-year-old Monticello woman's challenge to the revocation of her driver's license under Minnesota's implied-consent law.

In his ruling, District Judge Stoney Hiljus wrote that "the episode of domestic violence here is outweighed by the potential hazards [Axelberg] created for the public when she drove her vehicle while intoxicated."

He concluded that a criminal-based "necessity defense" can't be used in a civil matter of public safety.

Attorney points to need

Axelberg's attorney said the decision highlights the need to create an exception in Minnesota law to allow the necessity defense in such cases.

"It's time the law catches up with society," Ryan Pacyga said. "It's not like this is a case that's going to snowball and provide 5,000 excuses to get a DWI. In cases where you really do have nowhere else to go and getting in the car isn't a safe enough barrier, don't tell me you can't drive to the safest location to get help."

Although Axelberg's yearlong revocation period is up, Pacyga said they will appeal the case on principle.

Axelberg, whose blood-alcohol level registered 0.18 percent, pleaded guilty to careless driving. She reconciled with her husband, Jason, who pleaded guilty to his charges and testified on her behalf at the revocation hearing. They are now receiving counseling.

Under state law, the necessity defense is available for individuals charged with a crime "if the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendant's breach of the law."

According to Minnesota's implied-consent law, all drivers who test over the 0.08 percent alcohol limit or who fail to give a test allow the commissioner of public safety to revoke their driver's license. While drunken driving is considered a crime, revoking a driver's license is considered a civil matter.

Pacyga argued that the necessity defense hasn't been accepted or barred from implied-consent proceedings and that it directly applied to his client, who he said had no other option than to drive away. Her husband took her cellphone, she was in a remote area where she couldn't call for help and he would likely catch her if she chose to run.

"Mrs. Axelberg was left with no alternative but to drive away to the nearest place she could find for help," Pacyga wrote in his brief. "That's exactly what she did because she could not do anything else to escape her assaultive husband."

Criminal vs. civil

But Assistant Attorney General Jeffrey Bilcik countered that criminal and civil cases are different at the core. While criminal laws are structured in favor of defendants, he argued, civil laws such as implied consent are designed to favor the public -- in this case, the public's safety.

"Given that implied-consent cases are civil proceedings, wholly separate from criminal DWI prosecutions, there is no public policy reason for inserting the common-law defense of necessity into the implied-consent process," Bilcik wrote. "Indeed, doing so would subvert the remedial nature of Minnesota's implied-consent statute by allowing admittedly drunk drivers to escape not only criminal liability, but also the civil/administrative consequences of their clearly dangerous drinking behavior."

In siding with the state, Hiljus wrote that it was up to the Legislature or Supreme Court, not the district court, to allow the necessity defense in implied-consent cases. He sided with an earlier decision that pointed out "the risk of being assaulted does not exceed the catastrophic dangers associated with drunk driving."

Pacyga said he disagreed. In this case, he said, the threat to Axelberg's safety was imminent and should be considered.

"We're up against a real tough body of law, policy wise," he said. "But if we're not supposed to figure the human element into this, why do we have people doing it anymore? We can just plug the facts into a computer and have it spit out the result."

Abby Simons • 612-673-4921

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